Law Commons^™

Foreward, Howard M. Erichson, Benjamin C. Zipursky

Fordham Law Review

No abstract provided.

How Long Is Forever This Time? The Broken Promise Of Bankruptcy Trusts, S. Todd Brown

Journal Articles

Bankruptcy trusts consistently fail to protect the interests of future claimants as contemplated by Section 524(g) of the Bankruptcy Code. Although this reality is generally understood, the extent of this failure has not been examined. And, as demonstrated in this study, the degree to which trusts are failing future victims is greater than commonly realized. More than two-thirds of the trusts that have completed their initial claims processing are paying new asbestos personal injury victims at or near historically low rates, and several others appear to be defunct or inactive. Nearly two-thirds of the trusts that remain active have reduced …

Ethical Issues In Mass Tort Plaintiffs’ Representation: Beyond The Aggregate Settlement Rule, Nancy J. Moore

Fordham Law Review

Those who have addressed ethics issues for plaintiffs’ lawyers in mass tort litigation have focused on possible reform of the aggregate settlement rule to facilitate global settlements. This Article addresses a broader range of ethical issues, including (1) application of the general conflicts of interest rule to both client-client and client-lawyer conflicts; (2) unresolved issues concerning the interpretation of the current aggregate settlement rule, including the need to disclose client names and the applicability of the rule to court-approved settlements and formula or matrix allocations; and (3) the ability of lawyers to voluntarily withdraw from representing plaintiffs who reject an …

Ethical Issues In Mass Tort Plaintiffs' Representation: Beyond The Aggregate Settlement Rule, Nancy J. Moore

Faculty Scholarship

Those who have addressed ethics issues for plaintiffs’ lawyers in mass tort litigation have focused on possible reform of the aggregate settlement rule to facilitate global settlements. This Article addresses a broader range of ethical issues, including (1) application of the general conflicts of interest rule to both client-client and client-lawyer conflicts; (2) unresolved issues concerning the interpretation of the current aggregate settlement rule, including the need to disclose client names and the applicability of the rule to court-approved settlements and formula or matrix allocations; and (3) the ability of lawyers to voluntarily withdraw from representing plaintiffs who reject an …

Disaggregating, Elizabeth Chamblee Burch

Scholarly Works

Commonality is a defining characteristic of mass-tort litigation. But mass-tort claimants typically do not share enough in common to warrant class certification. That is, commonality does not predominate. Yet, without class certification, judges cannot conclude these cases as a unit absent a private settlement.

This paradox prompts two questions. First, what level of commonality justifies aggregating mass torts, shorn of Rule 23’s procedural protections? And, second, should the federal judicial system continue to centralize claims with nominal commonality when judges typically cannot resolve them collectively absent a private settlement? This Article’s title suggests one answer: if minimal commonality continues to …

Plaintiff Control And Domination In Multidistrict Mass Torts, S. Todd Brown

Cleveland State Law Review

The Supreme Court’s recent decisions concerning preclusion doctrine stress the “deep-rooted historic tradition that everyone should have his own day in court.” Nonetheless, “properly conducted class actions” are a recognized exception to this general rule because such actions ensure that nonparties are “adequately represented by someone with the same interests who was a party to the suit.” Mass torts, however, frequently involve numerous plaintiffs with diverse legal and factual issues that are not “sufficiently cohesive to warrant adjudication by representation.” Thus, it may be reasonably feared that the Court’s firm insistence on preserving individual autonomy will deny plaintiffs the economies …

Introduction, Perspectives On Mass Tort Litigation Symposium, Christopher J. Robinette

Christopher J Robinette

State Medical Reimbursement Lawsuits After Tobacco: Is The Domino Effect For Lead Paint Manufacturers And Others Fair Game? , Richard L. Cupp Jr.

Pepperdine Law Review

In 1998 the tobacco industry reached a settlement with the government for $246 billion. The massive size and scope of the states' tobacco settlement will inevitably exert a powerful influence on tort litigation for decades. The proliferation of copycat lawsuits, such as lead paint claims, seeking to emulate the spectacular success of the tobacco lawsuits will be one of the first aftershocks. The appropriate legislative response to this copycat litigation is to enact legislation limiting mass tort claims by states and other government entities. Because politics and economics may be influencing the filing of these lawsuits, rather than a purer …

Blue Jeans, Chewing Gum, And Climate Change Litigation: American Exports To Europe, Daniel Hare

Daniel Hare

This paper analyzes how American-style climate change litigation might be adopted by the European Union (EU) and projects potential methods by which the EU might employ the U.S. model, if it indeed chooses to take the climate change battle to the courts. By synthesizing existing U.S. case law in the environment and climate change fields, the paper roughly defines the “American model” of climate change litigation as parens patriae actions, oftentimes based in the tort of public nuisance, brought by states and other sovereign entities against polluter-defendants. The structural differences between the common law United States and predominantly civil law …

Mass Torts And Due Process, Sergio J. Campos

Vanderbilt Law Review

As the old saying goes, hard cases make bad law. But hard cases also reveal the limits of legal doctrine. In this Article, I turn to a class of hard cases--mass torts--to rethink the law of procedural due process under the Due Process Clause. Mass torts have long perplexed courts and scholars. They include torts caused by asbestos and other toxic chemicals, pharmaceuticals, oil spills, and other mass-produced products and services. The plaintiffs not only suffer significant injuries, but the sheer number of plaintiffs, each with claims that raise unique fact and legal issues, stretch judicial resources to the limit. …

Merging Roles: Mass Tort Lawyers As Agents And Trustees, Charles Silver

Pepperdine Law Review

No abstract provided.

Blue Jeans, Chewing Gum, And Climate Change Litigation: American Exports To Europe, Daniel Hare

Daniel Hare

This paper analyzes how American-style climate change litigation might be adopted by the European Union (EU) and projects potential methods by which the EU might employ the U.S. model, if it indeed chooses to take the climate change battle to the courts. By synthesizing existing U.S. case law in the environment and climate change fields, the paper roughly defines the “American model” of climate change litigation as parens patriae actions, oftentimes based in the tort of public nuisance, brought by states and other sovereign entities against polluter-defendants. The structural differences between the common law United States and predominantly civil law …

Mass Disaster Mediation: Innovative, Adr, Or A Lion's Den?, Elizabeth Baker Murrill

Pepperdine Dispute Resolution Law Journal

Mass torts and other mass claims are becoming an ever more popular forum for the use of alternative dispute resolution to resolve parties' claims in the wake of events that produce thousands of conflicts overnight. Mediation, in particular, has been used in several high-profile mass disaster events in an effort to resolve individual claims efficiently and quickly. This paper evaluates special risks posed in this kind of mediation that can go to the heart and the integrity of the mediation process. The thesis of this paper is that the potential imbalance in the parties' experience, education, and individual situation can …

Specious Claims And Global Settlements, S. Todd Brown

Journal Articles

Few problems are more disruptive to the efficient negotiation and operation of comprehensive mass tort settlements than oversubscription, which, at times, appears to be fueled primarily by specious claims. In settlements with opt out rights, a flood of claims can generate a market for lemons, with the weakest claims submitted to the settlement and the strongest opting out and seeking recovery at trial or in private settlement. In binding settlements, they may result in a commons problem, requiring dramatic reductions in payment that effectively transfer recoveries from those with intrinsically strong claims to those with weak claims.

This Article evaluates …

Striking Out Specious Claims In Mass Tort Global Settlements, Sergio J. Campos

Articles

No abstract provided.

Mass Torts And Due Process, Sergio Campos

Sergio J. Campos

Almost all courts and scholars disfavor the use of class actions in mass tort litigation, since class actions infringe on each plaintiff's control, or autonomy, over the tort claim. The Supreme Court, in fact, has strongly suggested that protecting such litigant autonomy is a requirement of due process, and has done so in recent decisions concerning the class action, arbitration, preclusion law, and the Erie doctrine. In this article I argue that protecting litigant autonomy in the mass tort context is self-defeating, and, in the process, rethink basic tenets of procedural due process. Relying on recent property theory, I first …

Mass Torts And Due Process, Sergio J. Campos

Sergio J. Campos

Almost all courts and scholars disfavor the use of class actions in mass tort litigation, since class actions infringe on each plaintiff's control, or autonomy, over the tort claim. The Supreme Court, in fact, has strongly suggested that protecting such litigant autonomy is a requirement of due process, and has done so in recent decisions concerning the class action, arbitration, preclusion law, and the Erie doctrine. In this article I argue that protecting litigant autonomy in the mass tort context is self-defeating, and, in the process, rethink basic tenets of procedural due process. Relying on recent property theory, I first …

Public Nuisance At The Crossroads: Policing The Intersection Between Statutory Primacy And Common Law, Richard O. Faulk, John S. Gray

Richard Faulk

Public nuisance is at the “crossroads” in California. The California lead paint litigation may be the end – or a new beginning – of mass tort proceedings against product manufacturers based upon public nuisance, as opposed to traditional strict product liability. The controversy lies squarely at the intersection of statutory and common law – an interchange that has grown increasingly more complex since California’s laws were codified in 1850, and since public nuisance was codified as a tort in 1872. The dispute is framed by this singular legal history and the complex jurisprudence the state has developed to simultaneously empower …

Litigating Together: Social, Moral, And Legal Obligations, Elizabeth Chamblee Burch

Scholarly Works

In a post-Class Action Fairness Act world, the modern mass-tort class action is disappearing. Indeed, multi-district litigation and private aggregation through contracts with plaintiffs’ law firms are the new mass-tort frontier. But something’s amiss with this “nonclass aggregation.” These new procedures involve a fundamentally different dynamic than class actions: plaintiffs have names, faces, and something deeply personal at stake. Their claims are independently economically viable, which gives them autonomy expectations about being able to control the course of their litigation. Yet, they participate in a familiar, collective effort to establish the defendant’s liability. They litigate from both a personal and …

Debate: The Future Of Mass Torts, Sergio J. Campos, Howard M. Erichson

Articles

No abstract provided.

Anatomy Of An Aggregate Settlement: The Triumph Of Temptation Over Ethics, Lester Brickman

Faculty Articles

In an aggregate settlement, usually of a mass tort claim, a defendant agrees to pay a specific dollar amount to be divided up by the lawyer among her multiple clients which may number in the hundreds and even thousands. Each client, therefore, is in competition with all of the lawyer’s other clients suing the same defendant for a share of the fixed sum. Rule 1.8(g) of the ABA Rules of Professional Conduct requires that each client give their informed consent to their allocation. To facilitate the settlement and the often quite substantial contingency fees to be earned, lawyers may mislead …

Litigating Together: Social, Moral, And Legal Obligations, Elizabeth Chamblee Burch

Elizabeth Chamblee Burch

In a post-Class Action Fairness Act world, the modern mass-tort class action is disappearing. Indeed, multi-district litigation and private aggregation through contracts with plaintiffs’ law firms are the new mass-tort frontier. But something’s amiss with this “nonclass aggregation.” These new procedures involve a fundamentally different dynamic than class actions: plaintiffs have names, faces, and something deeply personal at stake. Their claims are independently economically viable, which gives them autonomy expectations about being able to control the course of their litigation. Yet, they participate in a familiar, collective effort to establish the defendant’s liability. They litigate from both a personal and …

Procedural Justice In Nonclass Aggregation, Elizabeth Chamblee Burch

Scholarly Works

Nonclass aggregate litigation is risky for plaintiffs: it falls into the gray area between individual litigation and certified class actions. Although scholars have formulated procedural protections for both extremes, the unique danger and allure posed by nonclass aggregation has been undertheorized, leaving mass tort claimants with inadequate safeguards. When hallmark features of mass torts include attenuated attorney-client relationships, numerous litigants, and the demise of adversarial legalism, the attorney-client relationship itself becomes another bargaining chip in the exchange of rights. This Article thus takes the initial steps toward advancing a cohesive theory of procedural justice in nonclass aggregation by exposing the …

Changing Equalities, Jack B. Weinstein

NYLS Law Review

No abstract provided.

Procedural Justice In Nonclass Aggregation, Elizabeth Chamblee Burch

Elizabeth Chamblee Burch

Nonclass aggregate litigation is risky for plaintiffs: it falls into the gray area between individual litigation and certified class actions. Although scholars have formulated procedural protections for both extremes, the unique danger and allure posed by nonclass aggregation has been undertheorized, leaving mass tort claimants with inadequate safeguards. When hallmark features of mass torts include attenuated attorney-client relationships, numerous litigants, and the demise of adversarial legalism, the attorney-client relationship itself becomes another bargaining chip in the exchange of rights. This Article takes the initial steps toward advancing a cohesive theory of procedural justice in nonclass aggregation by exposing the problem …

What Do We Talk About When We Talk About Mass Torts?, Anthony J. Sebok

Michigan Law Review

Twenty years ago, Deborah Hensler and a team of scholars at the RAND Corporation's Institute for Civil Justice issued a report entitled Trends in Tort Litigation: The Story Behind the Statistics. Pressure had been mounting both in the business community and the Republican Party to "reform" tort law throughout the 1980s. There was concern that Americans "egged on by avaricious lawyers, sue[d] too readily, and irresponsible juries and activist judges wayla[id] blameless businesses at enormous cost to social and economic well-being." The RAND report argued that the real risk of a torts "explosion" came from the world of mass …

When The Bell Can't Be Unrung: Document Leaks And Protective Orders In Mass Tort Litigation, William G. Childs

Faculty Scholarship

This Article focuses on the proper balance for the tort system to strike between its role as a means for resolving disputes and its potential role as a means for obtaining information about the conduct of the parties, especially as that conduct affects public health.

The Author states that most protective orders in mass torts have been appropriate, and most documents presently designated as confidential have been properly designated, at least under the policies that have been established to date. The Author starts with the notion that protective orders have value and that there are reasons to try to prevent …

Book Review [Suing The Gun Industry: A Battle At The Crossroads Of Gun Control And Mass Torts], Santa Clara Law Review

Santa Clara Law Review

No abstract provided.

Assessing The Coverage Carnage: Asbestos Liability And Insurance After Three Decades Of Dispute, Jeffrey W. Stempel

Scholarly Works

Often overlooked are the insurance issues related to asbestos and the degree to which the asbestos mass tort has changed the face of liability insurance and liability insurance law. The asbestos mass tort brought insurance coverage litigation into the big leagues of litigation, adjudication, and scholarly examination (although even the most rabid insurance coverage junkie would concede this is not much silver lining to the asbestos cloud). But after 30 years of big-time liability insurance coverage litigation involving asbestos or influenced by asbestos, what is the outcome? My assessment is:

1. Despite their protestations, insurers have not been unfairly treated …

Opting Out Of Liability: The Forthcoming, Near-Total Demise Of The Modern Class Action, Myriam Gilles

Michigan Law Review

It is reasonable to expect that courts will demonstrate great solicitude for the recent innovation that I term "collective action waivers" - i.e., contractual provisions contained within arbitration agreements whereby consumers and others waive their rights to participate in any form of collective litigation or class arbitration. The history of mass tort class actions and the hegemonic expansion of pro-arbitration jurisprudence compel this conclusion. And, as the now-dominant economic model of contract law has moved the focus of courts from the value of consent to the value of efficiency, arbitration agreements found in all manner of shrink-wrap, scroll-text and bill-stuffer …